Tuesday, 30 September 2014

Alina Tryfonidou, Associate Professor
in EU Law, School of Law, University of Reading

On 26 September 2014, the Commission published aHandbook(‘Handbook on addressing the issue of
alleged marriages of convenience between EU citizens and non-EU nationals in
the context of EU law on free movement of EU citizens’) to assist Member States
to take action against marriages of convenience between migrant EU citizens and
third-country nationals, whilst ensuring that the rights that EU citizens
derive from the EU free movement provisions are not unduly limited as a result
of such action. As explained by the Commission in itsPress Release, the Handbook was
prepared ‘in close cooperation with Member States following requests by a
number of EU countries for support in dealing with the phenomenon’; and the
guidelines emerging from it will ‘help to ensure that national authorities
address this phenomenon – the extent of which varies significantly between
Member States – based on the same factual and legal criteria throughout the
Union’.

The publication of
the Handbook was also accompanied by aCommunicationfrom the Commission
to the European Parliament and the Council, which summarises the main content
of the Handbook. As noted in the Handbook (p. 5) and the documents
accompanying it, ‘[t]he Handbook is neither legally binding nor
exhaustive. It is without prejudice to existing EU law and its future development.
It is also without prejudice to the authoritative interpretation of EU law
which may be given by the Court of Justice’.

Before proceeding
to examine the contents of the Handbook, I should provide some background
information regarding marriages of convenience and their link with EU free
movement law.

As is well-known, Member State nationals –
who, since 1993 (with the entry into force of the Maastricht Treaty), are,
also, Union citizens – are entitled to the right to move and reside freely
within the EU. This right is bestowed by a number of different provisions
(collectively referred to as ‘the free movement of persons provisions’) which
are now found in theFEU Treaty, and is further elucidated in secondary
legislation and, in particular,Directive 2004/38. Although this
was (and still is) nowhere reflected in the Treaties, it has always been
recognised that in order to ensure that Union citizens are not deterred from
exercising the above right, they must be ‘guaranteed’ that its exercise will
not lead to loss of the right to live with their family members or, more
broadly, to a disturbance to the smooth functioning of their family life.
Thus, family reunification rights have been considered a necessary
accompaniment to the right to move and reside in the territory of another
Member State derived from the Treaty.

For this purpose, since the 1960s, secondary legislation has
provided for automaticfamily
reunification rights for migrant Member State nationals, something which has
proved particularly beneficial in situations involving migrant Union citizenswith
third-country national family members, since the latter can, as a result, join
the former in the host Member Statewithout having
to undergo a prior individual assessment of their situation, which is
(normally, i.e. in case EU law does not apply) required by Member State
immigration rules. Family reunification rights for migrant Union citizens
are now found in Directive 2004/38, which provides,inter alia, that migrant
Union citizens are entitled to be accompanied or joined in the host State by
their ‘spouse’, which clearly covers both third-country national spouses as
well as spouses holding the nationality of a Member State (Article 2(2)(a) of
Directive 2004/38).

The EU legislature and the ECJ have been
aware of the danger of abuse of EU free movement rights, and, in the particular
context of family reunification rights, of the danger that third-country
nationals may enter into marriages of convenience with Union citizens, in order
to bypass national immigration rules by activating the full gamut of rights
that EU law grants to the family members of migrant Union citizens. Hence,
Article 35 of the Directive provides that ‘Member States may adopt the
necessary measures to refuse, terminate or withdraw any right conferred by this
Directive in the case of abuse of rights or fraud, such as marriages of
convenience. Any such measure shall be proportionate and subject to the
procedural safeguards provided for in Articles 30 and 31’. The above
provision, nonetheless, merely recognises that Member States can adopt measures
to tackle marriages of convenience and it does not explain what this really
means or what it may entail.

Initially, the EU provided only limited guidance as regards
marriages of convenience and how these could best be tackled by Member
States. In particular, in 2009, in itsCommunicationto the European
Parliament and Council ‘on guidance for better transposition and application of
Directive 2004/38/EC on the right of citizens of the Union and their family
members to move and reside freely within the territory of the Member States’,
the Commission provided a clarification of the notions of ‘marriages of
convenience’ and other forms of abuse and fraud for the purposes of Article 35
of the 2004 Directive (see Section 4 of the Communication). However, it did not
provide clear and detailed guidance as tohowMember States
should deal with the above without acting contrary to EU law.

For this purpose, in 2012, the Justice and Home Affairs Council
agreed that a handbook was necessary to provide detailed guidelines for Member
States detailing how best to respond to the phenomenon of marriages of
convenience (‘EU action on migratory pressures – A Strategic Response’).
Moreover, in November 2013, the Commission in itsCommunication‘Free movement of
EU citizens and their families: Five actions to make a difference’, set out
five actions to help implement EU rules on free movement within EU member
States, and, as a response to the Justice and Home Affairs conclusions in 2012,
one of these actions was ‘helping Member States fight marriages of
convenience’. Accordingly, it was agreed that the Commission, together
with Member States, should prepare a handbook providing guidelines for the
purpose of tackling marriages of convenience.

This is what led to the adoption of the Handbook under examination
which, as explained by the Commission, offers ‘national authorities operational
guidance to assist them in effectively detecting and investigating suspected
cases of marriages of convenience.’ (p. 3 of the Communication accompanying the
Handbook).

In Section 1, the Commission sets out the background to the
Handbook – what made it necessary to prepare the Handbook and what is its aim –
and limits its scope of application to situations involving EU citizens who
‘reside with their third-country national spouse in a Member State other than
that of their nationality, or reside in the Member State of their nationality
after having exercised their right to free movement notably by residing in
another Member State’ (i.e. marriages of convenience within the meaning of
Directive 2004/38, plus so-called ‘Surinder Singh’ cases of people who move to
another Member State then return to their home State, to which the same rules
apply). It thereby excluding marriages
of convenience between two EU citizens and between two third-country nationals,
or situations which are purely internal to a Member State, ie where no-one has
exercised their right to move to another Member State (p. 5 of the
Handbook).

As explained, the Handbook seeks to
‘assist Member States in tackling suspected marriages of convenience from the
specific perspective of EU citizens’ right to free movement’. It is
stressed that since actions taken by national authorities when tackling abusive
practices such as marriages of convenience are derogations from a fundamental
freedom – free movement – they may only take place on a case-by-case basis and
if they are non-discriminatory, justified and proportionate, if they comply
with the procedural safeguards laid down in Articles 30 and 31 of Directive
2004/38, and if they do not breach any of the fundamental rights protected
under EU law; a point which is analysed in more detail in Section 3 of the
Handbook, which is devoted to a detailed explanation of each of the above
requirements.

Section 2 then proceeds to provide definitions of the main terms
used in the Handbook and, in particular, it provides guidance for
distinguishing between genuine marriages and marriages of convenience, and
between abuse and fraud. After explaining the meaning of ‘marriage of
convenience’ for the purposes of the Handbook (‘a marriage contracted for the
sole purpose of conferring a right of free movement and residence under EU law
on free movement of EU citizens to a spouse who would otherwise not have such a
right’), the document summarises the constitutive elements of abuse, explaining
that in detecting a marriage of convenience, ‘the focus must be on the
intention of the relationship on which the right of residence is founded rather
than on the outward reflection of the relationship’. The section then
provides examples of different types of genuine marriages (arranged marriages,
proxy marriages, consular marriages) and marriages of convenience (‘standard’
marriages of convenience, marriages by deception, forced marriages, bogus
marriages), and refers to the EU rules which apply in case the marriages of
convenience include elements of trafficking in human beings.

Section 3 proceeds to describe the applicable legal
framework. It begins by explaining that an incorrect decision restricting
free movement rights on grounds of abuse may have an important negative impact
on the rights and well-being of EU citizens and their families who have
genuinely made use of their right to free movement. Accordingly, the aim
of section 3 is, firstly, to help ‘national authorities to identify all the
factors and rules that must be taken into account when wanting to take any
measure to prevent or tackle abuse, in particular the EU rules on free movement
and fundamental rights’, as laid down in the FEU Treaty and theEU Charter of Fundamental Rights, respectively, but
also other important instruments of European and international law that need to
be taken into account, such as theECHR,UDHR,ICCPR,UNCRC; and, secondly, ‘to draw the attention of
national authorities to the fact that any formal decision taken by national
authorities in relation to marriages of convenience has to comply with a number
of procedural safeguards’. The section, also, deals with the issues of
evidential burden and the burden of proof, the latter clearly resting on the
national authorities which need to prove that the marriage is of
convenience.

The final section – Section 4 – ‘reflects practices distilled
from national practices across the Member States’ and ‘should serve as a
toolbox of solutions allowing Member States to set up tailored operational
schemes fitting their specific needs and available resources’. It begins
by explaining the reasons and motivations behind marriages of convenience and
then proceeds to analyse the hints that could trigger the launch of an
investigation by national authorities – it is, nonetheless, underlined that
‘hints of abuse may only trigger an open-ended investigation, with no
pre-determined outcome’ (p. 33).

However, the Commission has been alert to
the danger of considering a genuine couple as abusers and, hence, in this
section it describes an approach that should be followed by national
authorities in order to minimise the danger of considering a genuine couple as
abusers (the ‘presumption of innocence’ and the ‘double-lock safeguard’), and
provides a list of hints of abuse (i.e. certain behaviour traits that abusive
couples are much more likely to present than genuine ones), which is divided
into ‘several groups corresponding to inherent stages of “the life cycle” of marriages
of convenience’ (p. 36).

This section concludes with an analysis of
the law-enforcement techniques and tools which can be used to tackle marriages
of convenience (simultaneous interviews and questionnaires, document and
background checks, inspections and community-based checks), encouraging, in
particular, ‘reinforced cross-border cooperation and sharing of best practices
in this area between competent national authorities’ (p. 41), which can be
significantly facilitated by two EU agencies (Europol and Eurojust) as well as
the European Commission itself. It is highlighted that the techniques and
tools presented in this section, must be compliant with the applicable
procedures and safeguards and must respect fundamental rights, most prominently
the right to private life.

There is no doubt that the Handbook is a well thought-out and
carefully drafted document, which seems capable of serving well the purpose for
which it was published, this being to assist Member States in their effort to
eradicate the phenomenon of marriages of convenience in a balanced way.
It is clear that its drafters sought to ensure that in their fight against
abuse and fraud in situations involving migrant Union citizens, national
authorities will restrict the free movement rights of the latter as little as
possible.

Moreover, the Handbook – postdating the
Treaty recognition of the binding nature of the EU Charter of Fundamental
Rights – constantly highlights the importance of ensuring that Member States do
not engage in any violations of fundamental (human) rights – as these are
protected under the Charter but, also, under international instruments, such as
the ECHR and the ICCPR – when investigating, proving and responding to a
finding of a marriage of convenience. Accordingly, the Commission should
be commended for drawing the attention of the Member States to the need to
maintain throughout all stages of tackling with a marriage of convenience a
balance between, on the one hand, the right to free movement that Union
citizens derive from EU law and the need to safeguard the protection of the
fundamental human rights of any persons involved in a suspected case of
marriage of convenience and, on the other, the ability of the Member States to
ensure the effective enforcement of their immigration policies and the
prevention and eradication of any abusive practices which by-pass national
immigration rules and procedures.

It is still early days for judging the success and effectiveness
of the document, given that it was only published last week. However, one
point of criticism can already be made and this is about its limited
scope.

It is true that different considerations apply in situations
involving couples comprised of a (migrant) Union citizen and a third-country
national (which are covered by the Handbook), on the one hand, and migrant or non-moving
couples comprised of two Union citizens or of two third-country nationals
(which are not covered by the Handbook), on the other; in fact, different
considerations apply, also, among the different types of couples that fall
outside the scope of the Handbook. Yet, in all cases involving suspected
marriages of convenience and the question of how Member States should respond
to them, the same safeguards regarding the protection of fundamental human
rights and fundamental principles need to be in place.

In fact, as can be noticed from a careful
perusal of the Handbook, its drafters appear to be mostly concerned with
safeguarding fundamental human rights and with ensuring that Member States are
aware of the need to comply with certain procedural requirements which derive,
in their turn, from the need to protect human rights and fundamental procedural
requirements, rather than to ensure the protection of the right to free
movement, which is what differentiates the category of couples that falls
within the scope of the Handbook from (almost all) the other couples that are
excluded from its scope.

Accordingly, it would make more sense, in my view, to draft a
Handbook which would apply in all situations which fall within the scope of EU
law and which involve Member State authorities tackling marriages of
convenience. The drafters would, clearly, be able to add some separate
sections in order to make provision for the different considerations that need
to be taken into account in relation to certain matters. Such an approach
would provide a clearer framework for Member States to tackle marriages of
convenience and would remove the need for the drafting of similar documents
covering the other categories of couples in the future. Such a wholesome
approach to the provision of guidelines with respect to the Member States’
response to marriages of convenience would not be entirely unprecedented, given
that the Council issued in 1997 aResolutionon measures to be
adopted to combat marriages of convenience, which was applicablebothto couples
comprised of a Union citizen (migrant or non-moving) and a third-country
nationalandcouples comprised
of two third-country nationals.

During his marathon three-hour hearing today in the European
Parliament, the designated Commissioner for migration and home affairs,
Dimitris Avramopolous, repeatedly stated his adherence to liberal principles.
He strongly supported the continuation of the Schengen system, a liberal
approach to asylum and legal migration, and freedom of movement for EU
citizens. What was lacking was further detail on how his principles would be
put into practice, and how the different aspects of EU policy in this area fit
together.

Let’s take legal migration first. The would-be Commissioner supported
not only a revision of the existing Blue Card rules on highly-skilled
migration, but also a more comprehensive overhaul of EU rules on legal
migration. Indeed, he explicitly supported an EU system for legal migration
resembling the liberal regimes of Canada and Australia.

Yet he did not give a timetable for suggesting reforms in
this area, even though the Commission has recently produced a report on the
problems with the implementation of the Blue Card system, and the potential
reforms of this system can easily be identified. (For an example of what an EU immigration
code might look like, see my Statewatch analysis on this issue).

He stated repeatedly that he believed that more liberal
rules on legal migration would help to solve the problem of migrants’ loss of
life en route to the EU, and reduce irregular migration more generally. But it’s
hard to believe that Member States would give legal status to all of these
would-be migrants. It should be recalled that, in accordance with Article 79(5)
TFEU, Member States in any event retain competence to decide on the numbers of
economic migrants coming from third
countries.

As for asylum law, he appeared to believe that the
implementation of the second phase of the Common European Asylum System (in July
2015), as well as EU legislation on legal migration, would be sufficient to
secure mutual recognition for refugee decisions in the EU. But the existing EU rules only allow refugees
and persons with subsidiary protection to move between Member States once they
have qualified as long-term residents. To do this, they have to reside legally
in a Member State for at least five years, and meet other conditions as well.
If they do then move between Member States, their protection status does not in
fact travel with them (except if they are moving between the small number of
States which have ratified a Council of Europe Convention on this issue).

These limited possibilities for persons with international
protection to move between Member States do not come anywhere near to
satisfying the principles of ‘solidarity, solidarity and solidarity’ which he
referred to as regards EU asylum law. Further solidarity could only be assured
by redistributing more persons with international protection, as well as
asylum-seekers, between Member States. On the latter point, he did at least
promise to review the EU’s problematic Dublin system on the responsibility for
asylum-seekers. However, as with the last review, it will surely prove
difficult to convince richer Member States to change the responsibility rules.

Mr. Avramopolous opposed the notion of a ‘Fortress Europe’,
objecting to ‘push-backs’ at the external borders and distancing himself from a
fence built at the Greek/Turkish border by a government which he was a minister
in. Although he supported a review of the mandate of Frontex, the EU’s border
agency, apparently to include search and rescue issues, he did not suggest any
concrete measures to supervise Member States’ operational activities at the
external borders in the absence of Frontex coordination.

He did support the idea of humanitarian visas to ensure that
protection-seekers could enter the EU without having to undertake unsafe
journeys. But his specific proposal to this end was rather utopian. His idea to
appoint staff in EU delegations in third countries to consider asylum applications
is attractive in principle, but would be difficult to implement in practice. In
order to put the plan into effect, it would be necessary both to reconceive the
nature of the EU’s external delegations, and to give EU bodies, rather than the
Member States alone, a role in taking decisions concerning visas and asylum in individual
cases.

The easier course, which could be implemented immediately
without such additional legal and political complications, would be to provide
explicitly in EU legislation for an obligation for Member States to issue
humanitarian visas to asylum-seekers in their external consulates. Arguably,
the EU’s current visa code already implicitly contains such an obligation. The negotiations
on the current proposal to revise the visa code offer an opportunity to set out
this rule explicitly in EU law.

Overall, then, the would-be Commissioner cannot be faulted
on his commitment to the basic principles which would underlie a liberal immigration
policy for the EU. But his understanding of the practical details and the
overall coherence of the policy is clearly a work in progress.

The ECJ has repeatedly held that, unlike workers from EU
Member States, Turkish nationals are not entitled to freedom of movement within the European Union but can rely
only on certain rights in the territory
of the host Member State alone (Savas, para 59; Derin, para
66). The Essent judgment provides a recent and clear illustration of how,
under certain circumstances, the EU internal market freedoms can be relied upon
to overcome those limitations and, indirectly, to broaden the freedom of
movement of Turkish and other third-country nationals.

Facts and legal
background

Under Netherlands legislation, an employer is
prohibited from having work carried out in the Netherlands by a foreign
national who does not hold a work permit.

Essent, a company established in the
Netherlands, had scaffolding at one of its branches in that Member State
erected by a number of workers from Turkey and other non-EU countries. Essent, however, did not hire those workers: it
entrusted the construction work to BIS, another Netherlands-based company,
which in turn requested Ekinci, a company incorporated in Germany, to post the
above workers to the Netherlands for the duration of the construction work.

As the Netherlands authorities had issued no
work permit for the purposes of that posting, the Netherland Minister fined
Essent EUR 264 000 for infringing Netherlands labour law.

In the ensuing litigation before the Netherlands
Raad van State, two provisions came into play: Article 41(1) of the 1970 Additional Protocol to the EEC-Turkey Association
Agreement and Article 13 of Decision no. 1/80 of the Association
Council of 19 September 1980. Both are standstill clauses, prohibiting,
respectively, new restrictions on the conditions of access to employment and on
the freedom to provide services between Turkey and EU Member States. The Netherlands
court thus resolved to stay proceedings and to seek guidance from the ECJ as to
the interpretation of those provisions.

The Judgment

The ECJ first
examined whether Article 41(1) of the Additional Protocol and
Article 13 of Decision No 1/80 applied to a situation such as the one
at issue in the main proceedings. After recalling that such provisions are
directly applicable and can be relied upon to have incompatible national
legislation set aside, the Court stressed that those provisions confer rights
to Turkish nationals “in the territory of the host Member State alone”. In
casu, the Court considered that the host Member State was Germany, where
the Turkish workers were legally resident and employed, rather than the
Netherlands, where the above workers were temporarily posted and whose labour
market they had no intention to enter. Accordingly, the ECJ ruled that Article
13 of Decision 1/80 was not applicable to the present case.

The Court reached the
same conclusion with reference to Article 41(1) of the Additional protocol.
While a Turkish undertaking providing a service in a Member State could rely
upon that provision, no such service provision occurred between Turkey and the
Netherlands in the present case. The only link with Turkey was the presence of
Turkish nationals among the workers posted by Ekinci to the Netherlands, a
connecting element that the ECJ regarded as “not sufficient” to trigger the
applicability of Article 41(1) of the Additional protocol.

The Court then
turned to Articles 56 and 57 TFEU, which secure the freedom to provide services
within the EU. It is worth noticing that the order for reference contained no
preliminary question concerning those provisions, yet the Court considered that
their interpretation could be useful to the referring court in adjudicating on
the case pending before it.

Recalling Advocate
General Bot’s Opinion, the Court noted that the posting of workers between
undertakings established in different Member states (in this case Ekinci and BIS) fell within the scope of the free movement of services, in spite of the
fact that some of those workers were not Union citizens. The Court also found
that Articles 56 and 57 TFEU could be invoked not only by the recipient (BIS),
but also by the end user of that service (Essent).

On those premises,
the ECJ considered that the Netherlands work permit requirement, and the related
administrative burdens, impeded the making available of foreign workers to a user
undertaking established in the Netherlands by a service-providing undertaking
established in another Member State.

As no harmonisation
had been achieved in the area, the ECJ turned to the issue of possible
justifications for the Netherlands measure. Whilst the Court acknowledged that
the Netherlands Government’s desire to avoid disturbances on the labour market
constituted an overriding reason in the public interest, it noted that posted
workers do not seek to gain access to the host State labour market, as they
return to their country of residence as soon as their work is over.

The Court also
averred that Member States are entitled to check that an undertaking
established in another Member State which posts foreign workers to its
territory is not availing itself of the freedom to provide services for a
purpose other than the performance of the service concerned. Nonetheless, the
ECJ considered that the Netherlands work permit requirement was
disproportionate to that aim, which could also be achieved through
less-restrictive means. For instance, the service-providing undertaking could
be required to show the Netherlands authorities that the situation of the
workers concerned is lawful as regards matters such as residence, work permit
and social coverage in the Member State in which that undertaking employs them.
Similarly, the service-providing undertaking could be required to report
beforehand to the Netherlands authorities the presence of posted workers, the
anticipated duration of their presence and the provision of services justifying
the posting.

Accordingly, the ECJ
held that Articles 56 and 57 TFEU must be interpreted as precluding national
legislation under which, when non-EU workers are posted by an undertaking
established in a Member State to a user undertaking established in another
Member State, such making available is conditional upon the latter Member State
issuing work permits to those workers.

Comment

The present ruling highlights the somewhat peculiar
situation of Turkish workers posted from one Member State to another in the
aftermath of the ECJ ruling in Abatay.
Those individuals can rely on Article 13 of Decision 1/80 against the Member
State into whose labour market they seek to integrate through the pursuit of
uninterrupted employment, but cannot invoke that provision against the Member
State where they are posted for limited periods of time. By the same token, while
a Turkish undertaking providing services in a Member State, as well as the Turkish
employees of that undertaking, can invoke Article 41(1) of the Additional
Protocol against that Member State, an EU undertaking employing Turkish
nationals cannot rely on that provision to challenge national measures that
restrict the movement of its Turkish employees.

In view of these incongruences and of the obvious
trade-restrictive effects of the Netherlands work permit requirement, the ECJ’s
willingness to expand the scope of the preliminary ruling to include Articles
56 and 57 TFEU is unsurprising. However, not too long ago, in Vicoplus,
the ECJ had ruled that the freedom to provide services, read in connection with
the 2003 Act of Accession, was no bar to the application of the Netherlands
work permit requirement to Polish workers posted to the Netherlands during the
transitional period provided in the Act of Accession. While AG Bot devoted
several paragraphs of his Opinion to
distinguish the factual and legal background in Vicoplus from that of the instant case, it is regrettable that the
ECJ did not take the opportunity to account for what might be perceived as differential
treatment between Turkish and Polish posted workers.

The ECJ only referred to Vicoplus to support its finding that the posting of workers between
Ekinci and BIS, two undertakings established in different Member States, fell
within the scope of the freedom to provide services. Neither Ekinci nor BIS,
however, sought to rely on that freedom. Could Essent invoke Articles 56 and 57
TFEU against Netherlands labour legislation, even though that undertaking was not the direct recipient of the service?

In its Opinion, AG Bot first observed that,
since the freedom to provide services pursues the public interest objective of
establishing an internal market, persons “other than service providers and
recipients” who, none the less, “have a material connection with a person who
has that status” should be able to invoke that freedom against domestic
restrictive measures. The Court had taken a
similar approach in respect of the free movement of workers in Las: “Article
45 TFEU may be relied on not only by workers themselves, but also by their
employers. In order to be truly effective, the right of workers to be engaged
and employed without discrimination necessarily entails as a corollary the
employer’s entitlement to engage them in accordance with the rules governing
freedom of movement for workers” (para 18).

The Advocate General then relied on an
interesting twist of the abuse of rights doctrine. Since nowadays it is common
to witness chains of several intermediaries between the principal contractor
and the employees, to prevent circumvention of the work permit requirement,
Netherlands legislation has adopted a broad notion of employer, making the
principal contractor responsible for obtaining work permits for non-EU workers
employed by its subcontractors. However, AG Bot argued that, to prevent
circumvention of the ban on restrictions on the freedom to provide services, just
as the principal contractor’s liability under national labour legislation expands,
so should its ability to rely on Article 56 and 57 TFEU.

Unfortunately, the ECJ made no reference to the
first argument, which could have provided some clarifications on the ability to
invoke fundamental freedoms by persons who do not fall within the scope of such
freedoms but have “a material connection” with others who did. In cases such as
Carpenter
and, more recently, Dogan, the ECJ had taken a different approach, by focusing on the impact on
service providers of national measures (e.g. deportation orders, immigration
requirements) addressed to persons connected to that provider (e.g. their
spouses).

The ECJ, instead, only ran an abridged, three-paragraph
version of AG Bot’s anti-circumvention argument, and found that, if Essent were
denied the possibility of relying on Article 56 and 57 TFEU, the Netherlands
could obstruct the freedom to provide services by enforcing its work permit
requirement against the principal contractor. It is worth noticing that in
earlier rulings the ECJ had relied on the abuse of rights argument to achieve
the opposite result: to narrow the scope of EU provisions in cases where the
conditions required to invoke those provisions had been artificially created contrary
to the objectives pursued by EU law (Emsland-Stärke,
paras 52-53).

Once the ECJ established a link between Essent
and the freedom to provide services, the fate of the work permit requirement as
a precondition for the posting of non-EU workers to the Netherlands was sealed.
The conditions, deadlines and administrative burden involved in obtaining the
work permit obviously hindered the making available of workers on a cross
border basis. The ECJ rejected the Netherlands government’s argument that the
measure was designed to avoid disturbances on its labour market, noting that
posted workers do not seek to gain access to that market, “as they return to
their country of origin or residence after the completion of their work”. The
Court then conceded that a Member State may check that an undertaking
established in another Member State which posts to its territory workers from a
non-member country is not availing itself of the freedom to provide services
for a purpose other than the performance of the service concerned, but engaged
in a merciless proportionality assessment of the measure and provided not one,
but two less restrictive alternatives to achieve the same aim.

Finally, it is worth highlighting that, unlike
recent rulings (such as Dogan)that exclusively concern Turkish
nationals, since neither Article 41(1) of the Additional Protocol nor Article
13 of Decision no. 1/80 were found to be applicable, the Essent holding applies to the posting of workers that are nationals
of any non-EU country between
undertakings established in different Member States.

Monday, 29 September 2014

The
would-be Commissioners for immigration and home affairs and Justice will
shortly be questioned by Members of the European Parliament (MEPs) in hearings,
to determine whether the EP should vote to confirm them in office. MEPs have
already asked some written questions and the would-be Commissioners have replied. Since most of the written questions were not very searching (except
for a couple of questions on data protection issues), the Commissioners did not
reply in much detail.

However,
the hearings are an opportunity for MEPs to ascertain the Commissioners’ plans,
and to secure important political commitments, in these fields. To that end, we
have therefore suggested a number of oral questions which MEPs should ask in
the hearings.

Immigration and asylum

The
Commission consider that migration policy should be framed by the (non binding)
objectives of the global approach to migration (GAMM) and relations with third
countries should be dealt with by “Mobility Partnership” which are more
diplomatic declarations than binding acts. Would you propose a binding legal basis
for treaties with the countries concerned, grounded on Articles 77, 78 and 79
of the TFEU?

What actions will the Commission take to ensure that EU legislation in this
field is fully and correctly implemented by the Member States?

Will the
Commission propose an immediate amendment to the EU visa code, to confirm that
Member States are obliged to give humanitarian visas to those who need them and
who apply at Member States' consulates in third countries?

When will
the Commission propose EU legislation to guarantee mutual recognition of Member
States' decisions regarding international protection, including the transfer of
protection?

When will
the Commission make proposals for a framework for sharing responsibility for
asylum-seekers and persons who have been granted international protection,
starting with those who have applied outside the territory of the Member
States?

Will the
Commission propose an immigration code, and what will its main contents be?

The Court
of Justice has recognised that search and rescue obligations are interlinked
with external borders surveillance (Case C-355/10). The EU adopted rules in
this field which governing only border control coordinated by Frontex. Do you
intend to propose that such rules should apply to all Member States’ border
controls as a general rule, by formally amending the Schengen Borders Code ?

What immediate and longer-term steps will the Commission take to address the
death toll of migrants crossing the Mediterranean?

Will the
Commission propose to amend the EU legislation on facilitation of unauthorised
entry to confirm that anyone who saves migrants from death or injury during a
border crossing, or who otherwise acts from humanitarian motives, is exempt
from prosecution?

Internal Security and Police cooperation

Measures
against terrorism and transnational crime were until now mainly taken under the
vague framework of “operational cooperation”. Will the Commission propose a
clear legal basis for the Internal Security Strategy and transforming the so
called “Policy Cycle” in a transparent and legally binding framework where
European and national interventions are clearly framed? Will you propose relevant
amendments to the Europol legislative proposal which make reference to the
policy cycle without framing it? Which initiatives will you take to
implement the principle of subsidiarity and proportionality as foreseen by the
Treaty, and to ensure that the Charter must be taken in account also for police
cooperation so that the European and national parliaments as well as the Court
of Justice could verify that these principles have been complied with ?

According
to Protocol 36 (the transitional protocol attached to the Treaty of Lisbon),
all measures dealing with police cooperation adopted before the entry into
force of that Treaty will fall under the jurisdiction of the Commission and of
the Court from 1 December 2014. Some of them are outdated and should be
repealed or substantially modified to take in account the post-Lisbon legal and
institutional framework (role of the Charter, co-responsibility of the EP, role
of the national Parliaments). In several cases where EU measures limit
dramatically fundamental rights sunset clauses should be inserted in the basic
acts. However nothing about this is written in your statement nor in the
previous Commission’s REFIT exercise. Could it be a priority or do you believe
that Lisbon Treaty did not change the situation in your domain of competence?

Will your
legislative programme also be grounded on the Treaty legal basis of judicial
cooperation in criminal matters ? If so, how will you frame the relations with
the Commissioner in charge of these aspects ?

Schengen
cooperation has been until now the most successful case of cooperation between
the Member States and has been recently upgraded by launching SIS II and EUROSUR. The
notion of integrated border management in Article 77 TFEU is progressively
taking shape but no substantial improvement happens in the role of the European
and National parliament. Other similar initiatives like PRUM and Swedish
initiatives have been developed following the principle of availability. Do you
plan further initiatives here?

For
instance, in light of the recent UK case where a convicted murderer moved from
one Member State to another, do you intend to propose the exchange of criminal
records concerning the most serious crimes by a Member State’s nationals
(murder, rape, grievous bodily harm) if those nationals are no longer imprisoned?

Will the
Commission propose a police code that recasts EU legislation in this field?

When does
the Commission intend to submit a legislative proposal implementing Article 75
of the TFEU dealing with freezing assets of terrorists ?

Justice Commissioner

According
to CJEU (Melloni, Radu judgments) the principle of primacy of EU law covers
also sensitive domains such as judicial cooperation in criminal matters. It is
then important that the EU legislation is set at the highest possible standards
of protection of fundamental rights so that by implementing the EU legislation
the current level of protection at national level will not be lowered. Do you
agree that all future EU legislative proposals on criminal law should make also
reference to the possible impact on national law and always permit the
possibility of higher national standards as referred to by art. 53 of the
Charter ?

Will the
Commission commit to propose to amend the Framework Decision on the European
Arrest Warrant and other pre-Lisbon measures on mutual recognition in criminal
matters, to ensure that there is the same level of protection of fundamental
rights as guaranteed in the recent Directive on the European Investigation
Order?

When will the Commission propose a measure to ensure adequate protection for
suspects as regards pre-trial detention in criminal proceedings in the Member
States?

Will the
Commission submit further legislative measures to improve the suspect's
procedural guarantees?

Fundamental
rights protection is meaningless without effective ways to obtain a judicial
redress at national or EU level. Will you submit a legislative proposal
upgrading the 2013 Commission Recommendation on collective redress
mechanisms so that citizens and companies can enforce the rights granted to
them under EU law where these have been infringed?

How will
the Commission act to ensure that Member States fully and correctly apply EU
legislation on the protection of victims' and suspects' rights in criminal
proceedings?

OLAF,
EUROJUST and EPPO will deal under different perspectives with the problem of
protection of EU financial interests. Has the time come to simplify the
institutional machinery, for instance by merging OLAF with EPPO ?

Several EU measures such as the Framework decision on terrorism restrict
individual freedoms. In these cases should the EU legislation (as well as
delegated and implementing acts) should not embody sunset clauses, as it the
case for the US legislation (see the Patriot Act)?

Will the
Commission commit to propose to the Council that any EU treaty on sharing
personal data with third countries will be suspended if, in the view of the
European Parliament following an independent review, in practice there is no
adequate level of protection of the relevant personal data in that third
country?

According
to the current and envisaged legislation it will be a Commission’s role to
assess the adequacy of data protection in third countries. Do you agree that
such evaluation should be done as delegated act as it requires a high level of
discretion on the Commission side ?

DIGITAL
AGENDA (together with Commissioner Oettinger and VP Ansip)

You will work with Candidate Commissioner Oettinger on the digital agenda who
made reference to an ambitious legislative programme soon to be adopted to
implement the European Digital Agenda. The EU Treaties offer several legal
bases to accomplish such an objective even if the EU is still lacking a
comprehensive and consistent legislative strategy which could give specific
expression to fundamental rights as defined by the Charter of fundamental
rights.

For this
reason the Court of Justice has recently annulled the Directive on data
retention. However the same fate could occur to other EU legislative measures
planned or in negotiation which do not meet the high standards required by the
Charter and to avoid challenges from national Courts.

To avoid
these risks will you be available to design and implement with your other
colleagues in the future Commission (Oettinger Timmermans, and Ansip) a
legislative strategy which could become an European "Marco Civil" as
the one recently adopted by Brazil ?

The Court of
Justice has defined in its data retention ruling very strict criteria to be
followed when collecting personal data for security purposes. Even the Council
legal service seems to consider that the current EU-US agreements on TFTP and
PNR do not fit with these criteria. What do you intend to do at the next
Transatlantic summit? Will you notify the US authorities that the agreements
should be profoundly revised?

When will the
Commission respond to the CJEU ruling on the invalidity of the data retention
Directive? Will it propose a new EU Directive which is compliant with the
judgment? Does the Commission believe that the Directive still allows for mass
surveillance? Will the Commission pursue infringement action against Member
States whose legislation is not in compliance with the criteria set out in the
judgment?

Saturday, 27 September 2014

As British readers of this
blog will know, a potential suspect in the disappearance of teenager Alice
Gross from her London home is a Latvian man, Arnis Zalkalns, who had a previous
conviction for murder in Latvia before moving to the UK. He is now missing and
could potentially be in Latvia.

This raises obvious
questions: how could a convicted murderer move to the UK, without being stopped
or detected? And what could now be done to get hold of Mr. Zalkalns? More broadly,
are there any lessons here about measures which the EU could adopt in the
future, and/or about how the EU laws currently in force could be applied?

Free
movement rules

First of all, how could a
convicted murderer move to the UK? He had served his (absurdly short) sentence under
Latvian law, so was not a fugitive from justice. But that doesn’t mean that he
had the right to move to the UK, or any other Member State. Although UKIP
leader Nigel Farage has claimed that ‘We can’t stop people like this entering
the country’, this is simply not the case.

The starting point here is
the EU’s citizenship Directive, which governs the free movement of EU citizens
between Member States. Free movement is not unlimited. Among other things, the
Directive provides that free movement can be denied on grounds of ‘public
policy, public security or public health’. This applies to entry, exit and stay
in a country. The law states that a criminal conviction cannot automatically justify
blocking free movement rights, but there is a proportionality test to be
applied on a case-by-case basis.

Given that murder is the
most serious crime, and that Mr. Zalkalns’ conviction was quite recent, there
is obviously an extremely strong case that he could have been refused entry. If
he challenged the refusal, it’s hard to imagine that any British court, or the
Court of Justice of the European Union (CJEU), would have been sympathetic.

So why wasn’t he refused
entry? Presumably because the UK authorities weren’t aware of his murder
conviction. There are EU laws on the sharing of criminal records, but they
applied only from 2012, some time after he entered the country. In any case,
they wouldn’t have helped, since they only oblige the Latvian authorities to
inform the UK about any convictions of British
citizens in that country.

The deputy Prime Minister,
Nick Clegg, has claimed that the limited exchange of criminal records information
between EU countries could ‘easily be fixed’. In fact, the history of building criminal or
immigration databases or information exchange systems, either within the UK or
the EU as a whole, shows that they are difficult and expensive to establish and
operate. But it might be possible to focus on sharing information on a very limited
number of the most serious criminal convictions, such as murder and rape, and
only as regards persons who were not imprisoned. (People still in jail can
obviously not exercise free movement rights).

It’s not clear if Mr. Zalkalns
was on parole from the Latvian system. If so, he presumably breached his parole
by leaving the country, and the Latvians should have issued a European Arrest
Warrant to get hold of him. Moreover, there’s an EU law in place for
transferring probation and parole decisions between Member States. It’s mainly
aimed at cases where (for instance) a British tourist has been convicted in
Latvia, and wants to return to the UK to serve his or her probation or parole
period. The EU could think about revising this law to fully cover cases like Mr.
Zalkalns too.

But even if the EU did that,
there’s a problem. The UK simply doesn’t want to apply this law: it has failed to do so by the deadline of 2011 (Latvia has applied it), and is going to opt
out of its obligations as of December 1st this year. I have warned before that the UK government’s intention to opt out of some EU criminal law legislation
might put public safety at risk. This case is a preview of the sorts of
problems that might arise.

There’s another aspect to
this case worth mentioning. Mr. Zalkalns was arrested in 2009 in the UK, for
indecent assault on another teenage girl. This could have been an opportunity
for the UK police to send an inquiry to the Latvian authorities (under the EU’s
rules on mutual assistance in criminal matters) for any further information
about Mr. Zalkalns, on the grounds that it might have helped their investigation
into that case. That would have uncovered his criminal record, which would then
have been grounds for expulsion from the country.

Is the lesson from this case
that (as Nigel Farage suggests) the UK should leave the EU, to ensure that criminals
don’t enter the country? Of course, only a small minority of EU citizens are
criminals. UKIP’s own plans call for the admission of 50,000 foreign workers a year into the UK. Presumably they would also
allow in at least a few tourists, students and family members. And as I pointed out yesterday, their plans
regarding asylum would backfire, leading to more asylum-seekers in the UK, not
fewer. Furthermore, leaving the EU would mean leaving all the rules currently
in place to deal with cross-border criminality, which were applied for instance
in the Jeremy Forrest case involving another teenage girl.

European
Arrest Warrant

If Mr. Zalkalns is now in
Latvia, could the UK authorities issue a European arrest warrant (EAW) to get
hold of him? They have been reluctant to do so, on the grounds that an EAW can
only be issued where prosecution is certain. According
to the UK's Extradition Act, the
authorities in the UK can send a European Arrest Warrant (EAW) to another
Member State, to ask them to arrest a person and send him back to the UK, as
long as 'there are reasonable grounds for believing that the person has
committed an offence' which is serious enough to ask for extradition. Also, the
police must also have issued an arrest warrant for the same person in the UK.
From the information available to the public, it looks as if the police could
make the case that there are reasonable grounds to suggest that Mr. Zalkalns
might have committed an offence. In any case, it's surely worth a try to see if
the Latvian authorities would accept an EAW.

However, the EU legislation on the European Arrest Warrant uses different words. It says
instead that an EAW can only be issued 'for the purposes of conducting a
criminal prosecution'. However, it's arguable that arresting someone that the
police reasonably believe is a potential suspect in a case is part of
'conducting' a prosecution, even if at the end of the day the prosecution
of that suspect might not go ahead if (for example) he turns out to have a good
alibi when questioned.It should
also be recalled that theother language versions of the EU law, which
are equally valid with the English version, might also point in a more flexible
direction, given the nature of other countries' criminal justice systems.

In any event,
the UK authorities could, as an alternative, send a ‘mutual assistance’ request
to the Latvians to obtain Mr. Zalkalns for questioning, on the grounds, even if
he is not necessarily going to be charged immediately, he may have evidence
which could be relevant to the case. In future, the European Investigation
Order will speed up this sort of enquiry.

In conclusion,
it appears that there are lessons in this case both for the EU and the UK. The EU could supplement its existing rules with a system for exchange of information on the
most serious criminal convictions and strengthen , As for the UK, the authorities let pass a
number of prior and current opportunities to get hold of Mr. Zalkalns, find out
about his criminal record or question him to obtain evidence; and the idea of opting out of the EU rules on the transfer of probation and parole decisions needs to be rethought.